Citation Nr: 0735329
Decision Date: 11/09/07 Archive Date: 11/26/07
DOCKET NO. 04-35 633 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for tinnitus.
3. Entitlement to service connection for diabetes mellitus,
type II.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Christine C. Kung, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1943 to April
1946.
This matter comes on appeal before the Board of Veterans'
Appeals (Board) from a November 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Chicago, Illinois (RO) which denied service connection for
diabetes mellitus, type II; bilateral hearing loss; and
tinnitus.
FINDINGS OF FACT
1. The veteran's bilateral hearing loss is not shown to be
etiologically related to active service.
2. The veteran's tinnitus is not shown to be etiologically
related to active service.
3. The veteran's diabetes mellitus, type II, is not shown to
be etiologically related to active service.
CONCLUSIONS OF LAW
1. Bilateral hearing loss was not incurred in or aggravated
by active service, nor may sensorineural hearing loss be
presumed to have been so incurred or aggravated. 38 U.S.C.A.
§§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38
C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2007).
2. Tinnitus was not incurred in or aggravated by active
service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 &
Supp. 2006); 38 C.F.R. §§ 3.303, 4.87 (2007).
3. Diabetes mellitus was not incurred in or aggravated by
active service, nor may it be presumed to have been so
incurred or aggravated. 38 U.S.C.A. §§ 1110, 5103, 5103A,
5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.307,
3.309, (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
A. Veterans Claims Assistance Act of 2000 (VCAA)
The Board finds that VA has met all statutory and regulatory
VCAA notice and duty to assist requirements. See 38 U.S.C.A.
§§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159 (2007);
Quartuccio v. Principi, 16 Vet. App. 183 (2002).
In March 2002, May 2002, June 2003, and March 2004 letters,
VA informed the veteran of the evidence necessary to
substantiate his claims, evidence VA would reasonably seek to
obtain, and information and evidence for which the veteran
was responsible. VA also asked the veteran to provide any
evidence that pertains to his claim.
Here, the duty to notify was not fully satisfied prior to the
initial unfavorable decision on the claim by the agency of
original jurisdiction (AOJ). Under such circumstances, VA's
duty to notify may not be "satisfied by various post-
decisional communications from which a claimant might have
been able to infer what evidence the VA found lacking in the
claimant's presentation." Rather, such notice errors may
instead be cured by issuance of a fully compliant notice,
followed by readjudication of the claim. See Mayfield v.
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was
not provided prior to the AOJ's initial adjudication, this
timing problem can be cured by the Board remanding for the
issuance of a VCAA notice followed by readjudication of the
claim by the AOJ); see also Prickett v. Nicholson, 20 Vet.
App. 370, 376 (2006) (the issuance of a fully compliant VCAA
notification followed by readjudication of the claim, such as
an SOC or SSOC, is sufficient to cure a timing defect).
In this case, the VCAA duty to notify was satisfied
subsequent to the initial AOJ decision by way of a letters
sent to the veteran on June 2003 and March 2004 that fully
addressed all four notice elements. The letters informed the
veteran of what evidence was required to substantiate the
claims and of the veteran's and VA's respective duties for
obtaining evidence. The veteran was also asked to submit
evidence and/or information in his possession to the AOJ.
Although the notice letter was not sent before the initial
AOJ decision in this matter, the Board finds that this error
was not prejudicial to the appellant because the actions
taken by VA after providing the notice have essentially cured
the error in the timing of notice. Not only has the veteran
been afforded a meaningful opportunity to participate
effectively in the processing of his claim and given ample
time to respond, but the AOJ also readjudicated the case by
way of an August 2003 rating decision and August 2004
statement of the case after the notice was provided. For
these reasons, it is not prejudicial to the veteran for the
Board to proceed to finally decide this appeal as the timing
error did not affect the essential fairness of the
adjudication.
A March 2006 letter provided the veteran with notice of the
type of evidence necessary to establish a disability rating
and effective date. See Dingess/Hartman v. Nicholson, 19
Vet. App. 473 (2006). Similarly, this notice was not
received prior to the initial rating decision. Despite the
inadequate timing of this notice, the Board finds no
prejudice to the veteran in proceeding with the issuance of a
final decision. See Pelegrini v. Principi, 18 Vet. App. 112
(2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). As
the Board concludes below that the preponderance of the
evidence is against the veteran's claims for service
connection, any questions as to the appropriate disability
rating or effective date to be assigned are rendered moot.
See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
There is no indication that any notice deficiency reasonably
affects the outcome of this case. Thus, the Board finds that
any failure is harmless error. See Mayfield v. Nicholson, 19
Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157
(Fed. Cir. Apr. 5, 2006).
If any notice deficiency is present, the Board finds that the
presumption of prejudice on VA's part has been rebutted in
this case by the following: (1) based on the communications
sent to the veteran over the course of this appeal, the
veteran clearly has actual knowledge of the evidence he is
required to submit in this case; and (2) based on the
veteran's contentions as well as the communications provided
to the veteran by the VA, it is reasonable to expect that the
veteran understands what was needed to prevail. See Sanders
v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007).
VA has a duty to assist the veteran in the development of the
claim. This duty includes assisting the veteran in the
procurement of service medical records and pertinent
treatment records and providing an examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the veteran. See Bernard v. Brown, 4
Vet. App. 384 (1993). The veteran's service medical records,
VA treatment records, private treatment records, VA
examinations, and various lay statements have been associated
with the claims file. In a September 2007 statement, the
veteran's representative contends that the RO should obtain
records of hospitalization identified by the veteran, and the
veteran should be afforded a VA examination which addresses
his diabetes mellitus prior to adjudication of the veteran's
claim. The Board notes in this respect, that in a May 2006
statement, the veteran reported that he was hospitalized in
August 1945 at a military hospital in Oceana, Shelton, or
Norfolk, VA. A review of the service medical records,
however, shows that this record of hospitalization has
already been associated with the claims file. The record
also shows that a VA examination addressing the veteran's
claim of service connection for diabetes mellitus, type II
was completed in May 2004; the examination reported has been
associated with the record. The Board upon reviewing the
examination report finds that it is sufficient to properly
adjudicate this matter. Therefore, the Board finds that all
relevant evidence necessary for an equitable disposition of
the veteran's appeal has been obtained.
The record does not otherwise indicate any additional
existing evidence that is necessary for a fair adjudication
of the claim that has not been obtained. Hence, no further
notice or assistance to the appellant is required to fulfill
VA's duty to assist the veteran in the development of the
claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281
F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet.
App. 143 (2001); see also Quartuccio v. Principi, 16 Vet.
App. 183 (2002).
B. Law and Analysis
In order to establish service connection for a claimed
disability, the facts must demonstrate that a disease or
injury resulting in current disability was incurred in active
military service or, if pre-existing active service, was
aggravated therein. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R.
§ 3.303 (2007). Service connection may be granted for any
disease diagnosed after discharge when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d) (2007).
In addition, certain chronic diseases, including diabetes
mellitus and sensorineural hearing loss, may be presumed to
have been incurred or aggravated during service if they
become disabling to a compensable degree within one year of
separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West
2002 & Supp. 2006); 38 C.F.R. §§ 3.307, 3.309 (2007).
In order to prevail on the issue of service connection on the
merits, there must be medical evidence of (1) a current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the present disease
or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999).
1. Hearing Loss and Tinnitus
Impaired hearing will be considered a disability for VA
purposes when the auditory threshold in any of the
frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40
decibels or greater; or the auditory thresholds for at least
three of these frequencies are 26 decibels or greater; or
when speech recognition scores using the Maryland CNC Test
are less than 94 percent. 38 C.F.R. § 3.385 (2007).
In July 2002 and January 2003 statements in support of his
claim, the veteran reported that he was told on the day of
his discharge that he had a 10 percent hearing loss. He
reported exposure to noise as an aerial gunner radioman.
The veteran's service medical records, however, do not
reflect any hearing loss in service. Whispered voice testing
was 15/15 on a May 1943 pre-induction and July 1943
enlistment examination, and was 15/15 upon separation in
April 1946. The service medical records contain no reports
of tinnitus and contain no competent medical evidence of
sensorineural hearing loss. There is no evidence of hearing
loss within one year of service separation.
On the authorized VA audiological evaluation in September
2002, puretone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
20
20
45
60
LEFT
15
20
60
60
60
Speech audiometry revealed speech recognition ability of 96
percent in the right and 84 percent in the left ear. The VA
examiner diagnosed the veteran with bilateral high frequency
sensorineural hearing loss. The examiner stated that
tinnitus with pitch and intensity matched to 4000 Hertz at 64
decibel hearing loss in both ears.
During examination, the veteran reported that he was told
that he had a hearing loss by the physician performing his
discharge physical examination in 1946. He reported that he
experienced constant tinnitus for the last 10 years.
Following discharge from service, the veteran had worked all
his life on a farm. He reported exposure to typical farm
implement noise such as tractors and power tools without
hearing protection devices. The veteran's claims file was
reviewed. Service medical records showed normal hearing on
his entrance and discharge examinations with no mention of a
hearing disability, hearing concerns, or tinnitus.
The examiner concluded that since the veteran's hearing
examination was normal upon exit from service, as it was on
entrance, it is as likely as not that factors other than
military noise exposure caused changes in his hearing. These
factors may include occupational noise exposure or type II
diabetes with renal failure and peripheral neuropathy.
Private treatment records from the Monroe Clinic dated in May
2001 note a history of tinnitus. VA and private treatment
records dated form 1995 to 2006 do not otherwise reflect any
treatment or evaluation for a hearing disability.
Based on the veteran's audiological examination, it is clear
that he has a current hearing disability. On the veteran's
September 2002 VA examination, auditory thresholds were
greater than 40 decibels in two of the aforementioned
frequencies for the right ear, in three frequencies for the
left ear, and speech recognition scores under the Maryland
CNC test were less than 94 percent in the left ear. The
examiner also indicated that the veteran has a current
diagnosis of tinnitus. However, competent medical evidence
does not establish a nexus between the veteran's current
hearing loss and tinnitus to noise exposure in service
Service medical records do not indicate any complaints,
treatment, or diagnoses of hearing loss or tinnitus in-
service. The record contains no evidence of sensorineural
hearing loss within one year from the date of termination of
service. The medical record contains no evidence of
diagnosis or treatment for hearing loss or tinnitus until
2001, 55 years after the veteran's separation from service in
1946. Therefore, the Board finds that the record indicates
that the veteran did not develop a hearing disability while
in service or sensorineural hearing loss within one year of
termination of service.
Finally, no medical relationship has been established between
the veteran's active duty and his current bilateral hearing
loss or tinnitus. The VA examiner stated that it is as likely
as not that factors other than military noise exposure caused
changes in his hearing, including occupational noise
exposure, type II diabetes with renal failure, and peripheral
neuropathy. The examiner based this opinion on a review of
the veteran's medical history, including service medical
records and the veteran's current medical records.
Therefore, the Board finds that service connection for
bilateral hearing loss and for tinnitus is not warranted.
In making this determination, the Board has considered the
veteran's own statements in support of his claims. However,
the most competent medical evidence of record does not relate
current bilateral hearing loss or tinnitus to service. See
Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu v.
Derwinski, 2 Vet. App. 492, 494-95 (1991). See also Heuer v.
Brown, 7 Vet. App. 379, 384 (1995) (citing Grottveit v.
Brown, 5 Vet. App. 91, 93 (1993)).
2. Diabetes Mellitus
The veteran's service medical records include a May 1943 pre-
induction examination, a July 1943 enlistment examination, an
April 1946 separation examination, and clinical treatment
records. Service medical records do no reflect any
complaints, treatment, or diagnoses relating to diabetes
mellitus in service.
The veteran has reported that he was hospitalized at the
NAAS, Shelton, Oceana, or Norfolk, VA in August 1945 for
blood and kidney disorders, and he reported that he was
treated with penicillin. In a September 2007 statement, the
veteran's representative indicated that the veteran's
hospitalization may be related to treatment for diabetes.
The August 1945 hospitalization is documented in the
veteran's service medical records, but does not indicate
treatment relating to diabetes mellitus. Service medical
records do show that the veteran was hospitalized at the
Naval Air Base, 5th ND, (NAAS, Oceana, or Norfolk, VA) with
an admitting diagnosis of urethritis, acute, non-venereal in
August 1945. It was noted that urethral discharge began
insidiously with a history of contact three weeks prior. A
smear showed gram-negative cocci of extra-cellular type only.
The veteran was treated with penicillin. He was discharged
five days later. The veteran was seen later the same month,
with a diagnosis of urethritis, chronic, non-venereal.
Follow-up notes indicate minimal urethral discharge which
continued for approximately one week. The veteran was then
returned to duty.
In a January 2003 statement, the veteran reported exposure to
significant G forces in service when pulling out of dives
from 12,000 feet to 2500 feet. He indicated that would pass
out and double over during these dives. He stated that a
flight surgeon told him that this was hard on the pancreas.
VA and private treatment records dated from 1995 to 2006
clearly reflect a current diagnosis of diabetes mellitus,
type II. The veteran's medical records show that he has a
history of diabetes mellitus; however, the record does not
reflect a diagnosis of diabetes mellitus until many years
after the veteran's 1946 separation from service. A May 1998
treatment report from the Monroe Clinic indicates that the
veteran had a past medical history of diabetes diagnosed in
1965. He was placed on insulin ten years prior. An April
2001 note from the Monroe Clinic indicates that the veteran
was 75 years old at the time of the examination. The
treatment report stated under "History of Diabetes
Mellitus" that the veteran was diagnosed with diabetes at
age 55 after having weight loss, urinary frequency, and
thirst. He was initially hospitalized, had insulin to begin
with, and then was placed on oral medications. A February
2002 treatment report reflects a diagnosis of adult onset
diabetes mellitus.
A May 2004 VA examination was completed in conjunction with a
review of the claims file. The examiner noted the veteran's
claim that his diabetes was due to significant "G" forces
experienced during dive bombing missions. The veteran
claimed that his diabetes mellitus, diagnosed in 1979 or
1980, was the result of damage to his pancreas that he
experienced as a result of these missions.
During examination, the veteran reported that he was
diagnosed with diabetes in 1974, when he had routine blood
work during a general physical. He relayed his medical
history, stating that he was initially treated with oral
agents, but insulin was added in about 1979. The veteran was
examined and was diagnosed with type II diabetes mellitus.
The examiner opined that there was no relationship between
the veteran's diabetes and his military service. She stated
that she could find nothing in the medical literature
relating G forces to disabilities. The examiner further
stated that any sort of significant pancreatic trauma could
result in diabetes. This would be a diabetes due to
pancreatic insufficiency, similar to type I diabetes, and
would be ketosis prone. This would usually develop
immediately after the injury or shortly after a period of
severe pancreatitis. It could not be managed for any period
of time with oral agents.
The veteran reported in a June 2003 statement that he was
first diagnosed with diabetes mellitus in 23 years prior. In
a March 2004 statement the veteran indicated that he was
diagnosed diabetic 25 years prior.
Although the veteran has a current diagnosis of diabetes
mellitus, diabetes mellitus was not incurred in service and
did not manifest within one year of separation from service.
The record instead indicates that diabetes mellitus was
diagnosed at least 20 to 30 years after the veteran's 1946
separation from service. Finally, no nexus has been
established between the veteran's currently diagnosed
diabetes mellitus and service. A May 2004 VA examiner opined
that there no relationship between the veteran's diabetes and
his military service, and indicated that there was no causal
relationship between exposure to G forces and any possible
pancreatic trauma and the veteran's diabetes mellitus.
The Board has considered the veteran's statements in support
of his claims. However, these contentions are not supported
by the medical evidence of record.
Therefore, the Board finds that service connection for
diabetes mellitus, type II is not warranted.
C. Conclusion
Although the veteran does have current diagnoses of bilateral
hearing loss, tinnitus, and diabetes mellitus, type II,
medical evidence of record does not show that these
disabilities were incurred or aggravated in service.
Sensorineural hearing loss and diabetes mellitus did not
manifest within a year following the veteran's separation
from service, and no nexus has been established between the
veteran's current disabilities and his service. Therefore,
the Board concludes the preponderance of the evidence is
against finding that the veteran has of bilateral hearing
loss, tinnitus, and diabetes mellitus, type II etiologically
related to active service. The appeal is accordingly denied.
In making this determination, the Board has considered the
provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the
doubt, but there is not such a state of equipoise of positive
and negative evidence to otherwise grant the veteran's claim.
ORDER
Service connection for bilateral hearing loss is denied.
Service connection for tinnitus is denied.
Service connection for diabetes mellitus, type II is denied.
_________________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs